IN THE MATTER OF THE ESTATE OF OTUI ENE KERIATON DUKUNY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO 21 OF 2015

IN THE MATTER OF THE ESTATE OF OTUI ENE KERIATION DUKUNY – DECEASED

IN THE MATTER OF THE FORMER ADMINISTRATORS OF THE ESTATE OF OTUI ENE KERIATON DUKUNY(DECEASED), THE LATE TOM KERIATON AND WILLIAM NKAMAU KIRIATON(DECEASED)

BONIFACE KALELI NZILA & 11 OTHERS…..OBJECTORS/APPLICANTS

VERSUS

VISTOR KATEI KIRIATON……………….…………………1^ST RESPONDENT

SENKAIRE KIRIATON……………..……………………..…2^ND RESPONDENT

KARORI KIRIATON…………………………..……..……….3^RD RESPONDENT

RULING

1. This Ruling relates to the Preliminary Objection (PO) dated 15^th January, 2024. The PO was raised against the Applicant’s Chamber Summons application dated 29^th November 2023. The Application seeks, among other orders, revocation of the Grant of Letters of Administration issued to Tom Kiriaton and William Nkamau Kiriaton on 31^st July, 2008 and a Certificate of Confirmation of Grant issued on 16^th June, 2011. The Applicants seek to be enjoined as parties to these proceedings and to have a new grant of letters of administration issued to them.
2. The grounds raised in the Preliminary Objection are framed as follows:
   1. That the application is bad in law as the petitioners/ administrators are deceased hence no party to defend the application.
   2. That there is no asset/estate of the deceased left un-administered hence the certificate of confirmation of grant has been executed, completed and the grant issued prior to the confirmation has exhausted its mandate.
   3. That the respondents are not administrators but brothers to the deceased administrators hence the application is brought improperly against them as they are not legally enjoined into these proceedings.
   4. That the objector/applicants be condemned to pay costs.
3. This Court has directed that the PO be heard first by way of written submissions. Parties have filed submissions.
4. The Respondents’ submissions are dated 9^th April, 2024. They have submitted that the actions of the Applicants in seeking revocation of the grant where the administrators are deceased and where the estate was fully administered is an exercise in vain. They argued that the application has been overtaken by events and the application is not legally tenable.
5. They further submitted that there is no party available to defend the estate. They stated that the grant was confirmed and executed and cannot be termed as useless since it has been fully acted on. They relied on the case In re Estate of Francis Kungu Wachira(deceased) (Succession Cause 601 of 2003) [2022] KEHC 14898 KLR) 2023, where the court in dealing with a similar scenario stated that:

“The case of Charles Gatimu Kamuthi v Evan Kaburu Kamutai  Embu Misc Application No 1 of 2001, the court held as follows:-

“Fourthly there are no provisions under the Law of Succession Act, allowing substitution of a deceased administrator or executor of the estate of another person, and this is rightly so bearing in mind the special process though which a person has to pass before that person becomes an administrator or an executor as such an administrator or executor cannot be imposed by the court upon beneficiaries and other interested members of the family and relatives of the deceased, whose estate the deceased administrator or executor was administering or executing.”

1. The Respondents urged that the court finds that the Chamber Summons dated 29^th November 2023 is defective and bad in law and allow the PO with costs.
2. The Applicant’s submissions are dated 12^th April, 2024. They have submitted on both the application and the PO.
3. On the issues touching on the PO, they have submitted on whether the grounds set out in the Notice of Preliminary Objection are points of law. They have relied on Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696 on what constitutes a preliminary objection. They have submitted that the PO filed herein does not raise points of law but raises issues which can be ventilated during the hearing of the case. They have submitted that for a PO to succeed, it has to satisfy the following criteria:
   1. That it should raise a pure point of law.
   2. That the PO is argued on an assumption that all the facts pleaded by the other side are correct.
   3. That the PO cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
4. It was their submission that the Respondents are required to explain why they refused to comply with orders of the court issued on 17^th January, 2019 where the family of the respondents was ordered to come with a nominee and an application for substitution within 21 days from the date of the order.
5. It was submitted that the dispute between the parties in the instant Cause cannot be resolved without ascertaining the facts and that a PO should not be raised where facts have to be ascertained as was held in the Mukisa Biscuit case.
6. It was submitted that to argue that there is no asset/estate of the deceased left un-administered because the Certificate of Confirmation was executed and distribution of the estate completed is not a pure point of law as parties would be required to table evidence before court to demonstrate that no estate has been left un- administered.
7. It was submitted that the issue of the distribution of the estate is a matter of fact which cannot be raised as a pure point of law because evidence is required to demonstrate how the distribution of the estate was done.
8. It was submitted that it is not a pure point of law to argue that the Respondents are not administrators but brothers of the deceased administrators because the Chamber Summons seek to invoke the section 54 of the Law of Succession Act and appoint the respondents who are sons of the deceased as administrators. They submitted that this court has the powers to appoint a representative of a deceased estate.
9. The Applicants relied on Estate of Nyamanga Opiyo (deceased) [2022] eKLR, where the Court stated that:

“Similarly, before this court, there is no evidence that there is a pending application for grant of letters of administration ad litem to substitute the deceased petitioner. Counsel merely states that the wife of the deceased has refused to come to court and there is no doubt that they are guilty of laches. In light of the provisions of Paragraph 14 of the 5^th Schedule, Cap 160, the court has the powers to issue the letters of administration ad litem to the personal representative of the deceased whether or not they are willing to act.”

“Counsel for the Petitioner is hereby directed to, within thirty (30) days of this ruling, file an application for letters of administration ad litem to substitute the petitioner.’’

Analysis and Determination

1.  I have considered the Preliminary Objection and the submissions together with the authorities relied upon by the parties. The submissions by the Respondents relate to the Chamber Summons and not the PO. Those of the Applicants are a mixture of the issues touching on the PO and the Application.
2. A Preliminary Objection is defined in the case of Mukisa Biscuit Manufacturing Company v West End Distributors Ltd [1969] EA as follows:

“A preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Cour or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.”

1. In looking at this matter it is not in dispute that there is no living administrator as the administrators to this estate are deceased.
2. I wish to state here that under determination is the PO not the Chamber Summons. It is upon this Court to determine whether the PO has merit. The effect of a PO, if upheld by the court, is to bring a suit to a close.
3. This matter has been handled by this court, Hon. Mr. Nyakundi, who ruled declined to deliver a judgment on the grounds that the suit had abated by virtue of the death of the administrators unless there was substitution. This was not done and the family of the deceased has held onto that anomaly to claim that there is nothing else left in this matter as the estate has been distributed.
4. I also handled this matter by determining a Summons General dated 19^th January 2022 and a PO. The Summons General sought orders directed as Citors to deposit security and the PO sought to have Chamber Summons dated 6^th December 2021 dismissed for reasons that the cause of action had abated.
5. The family of the deceased seem to want to lock out any party claiming the purchaser’s interest from pursuing their claim. In a ruling delivered on 31^st October 2023, I stated that the Citors are enabled by the law to pursue their claim. I still hold the same view.
6. As regards the PO, it is my finding that the issues being raised by the Applicants in the Chamber Summons dated 29^th November 2023 require the court to take evidence from the parties and make a determination in view of the fact that the court (Nyakundi, J) did not deliver a judgment in this matter. I will and do hereby find the PO not merited and dismiss the same with costs.
7. Let the file be placed before the Presiding Judge in Kajiado High Court for directions on the hearing of the Chamber Summons dated 29^th November 2023. It is so ordered.

Dated, signed and delivered this 5th March 2025.

S. N. MUTUKU

JUDGE

In the presence of:

1. Mr. Karwanda holding brief for Wachira Maina for the Respondent.
2. Ms Wachira holding brief for Njeri Ngunjiri for the Objector/Applicant